Wednesday, October 9, 2013

MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN

The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case.  Please do not hesitate to contact MU Law if you have any questions about these issues.

The Federal Government Shutdown has caused the Department of Labor to furlough about 80% of its workforce.  As a result the DOL’s iCert System, which is the manner through which LCAs are filed, has been turned off.  It is impossible to file LCAs, leading to many questions from H-1B employers. 

Background: The LCA System

The Labor Condition Application (LCA) is the centerpiece of the H-1B program.  It serves two primary functions.  First, it forces the H-1B employer to certify that the wage that it is offering to pay the H-1B worker is not lower than similar US workers.  Second, the LCA includes a mandatory mechanism whereby H-1B employers must notify potential US workers of their right to contact the Department of Labor (DOL) if they believe that the H-1B employer is engaging in prohibited behavior.

There are two ways that the LCA is utilized in the H-1B process.  First, new H-1B petitions must be submitted with an LCA that has been certified by the DOL.  Second, if an employee is going to change worksites, the employer must provide new Notice to the workers at this new worksite.  In some instance, the H-1B employer must file a new LCA with the DOL and wait the seven days for the DOL to certify the new LCA.  In other instances, the H-1B employer must not only obtain a new certified LCA but must also file a new H-1B.

The Government Shutdown

Unfortunately with the government shutdown the DOL has shuttered the LCA system.  It is impossible to file LCAs.  The DOL has not given the public any guidance on how to handle new H-1B petitions nor how to handle new situations where a new LCA is required.

On account of the fact that LCAs cannot be filed, H-1B employees should not change worksites in instances where a new LCA would normally be required.  This is the safest approach.  Once the government shutdown ends, H-1B employers can file an LCA and the employee can move once the new LCA is certified and in place.

On the bright side there are some instances when a new LCA is not required. 
  •  When H-1B workers change worksites, but the new worksite is still within the prior LCA metropolitan area, a new LCA is not required.  An H-1B employer must still post notice at the new worksite. 
  •  The LCA rules allow H-1B employees to work at new worksites when the new worksite is peripatetic or very short-term.  For example a new certified LCA is not required if an H-1B employee is attending meetings for a few days in a new location.


If business needs demand that an H-1B must change worksites, then the H-1B employer must be aware that it may be technically violating law, although a legal argument could be made that compliance with the law was impossible on account of the shutdown.  Penalties can range from $1,000 - $35,000 per violation.  Debarment from the H-1B program could also occur.  After considering these potential penalties, an H-1B employer still feels compelled to move the H-1B worker, we urge that H-1B employers take all three of these additional measures to mitigate risk:

·         Make sure to post LCA posting.  Even though we would not be able to file an LCA, we would still be able to post Notice at the destination worksite.  We can prepare the Notice Posting for you.
·         File an LCA at the conclusion of the shutdown.

·         File an amended H-1B at the conclusion of the shutdown and the certification of the new LCA.

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